Category Archives: gravity

The Gaza Flotilla, Israel and the ICC: Some thoughts on Gravity and the Relevant Armed Conflict

As I briefly mentioned last week, the Office of the Prosecutor at the ICC has declined to open an investigation into the incidents that surrounded Israel’s dealing with the flotilla of boats that attempted to break the blockade of Gaza in 2010. The general context has been largely documented, both in the press and in reports issued since the incidents. In fact, few single incidents have led to the production of so many reports, both domestic and international, in recent times.

The OTP’s analysis relies heavily on these reports to come to its conclusion that, while there may be some reasons to believe that war crimes have been committed, the situation is not of sufficient gravity to warrant the opening of an investigation. As noted by Kevin Jon Heller,  the Comoros, who referred the situation in the first place, can “appeal” the decision, but the best that it could obtain is that a Chamber simply asks the OTP to reconsider its decision,  without any power to force it to actually open an investigation.

There is a lot to say about the document produced by the OTP, I just wanted to comment on two points: gravity and the nature of the armed conflict (for very interesting early reflections on the OTP’s reasoning, see Michael Kearney’s points over at Opinio Juris).

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The Comoros Referral to the ICC of the Israel Flotilla Raid: When a ‘situation’ is not really a ‘situation’

As has been widely reported already, The ICC OTP announced today that it had received a referral from the Comoros “in relation to the event of May 2010 on the vessel Mavi Marmara”. You will recall that this boat was part of the group of boats that tried to reach Gaza at the time and which were boarded by the Israeli army, resulting in a number of deaths and injuries.

The usual suspects of the blogosphere have already put up excellent posts on this development: Kevin Heller (here and here), Dapo Akande (here) and William Schabas (here). They already covered a number of more political issues which I won’t delve into here, such the perception issues that would flow from the initiation or not of a formal investigation among African States and the international community, the alleged anti-palestinian bias of the ICC OTP or the apparently poor timing of the referral given that Israel and Turkey seem to be getting close to finishing their negotiations on the incident.

I also won’t go discussions of certain legal questions that come up in relation to this referral. I would tend to agree with Kevin’s evaluation that this would not meet the gravity threshold under Article 17, especially given the response given by the Prosecutor in the Iraq communications. However, I’m wondering if the Abu Garda case, which concerned a single attack on a peace keeping compound, and where it was considered that the gravity threshold was met, is not a indication to the contrary.

Also, I find the referral thoroughly sloppy on the legal characterization of the facts as war crimes and crimes against humanity. It unconvincingly tries to link the events to the Gaza situation (discussions on the Palestinian declaration to the ICC in 2009 are for me beside the point here) and there is a meager two paragraphs on crimes against humanity that would be laughable if not present in a formal State referral to the ICC.

Finally, as an aside, I think too much is being made of the link between the fact that Comoros is the State of registration of the Mavi Marmama and the fact that Comoros is doing the referral, as if the former implied the latter. However, legally, there is no need to make that link. What’s important is that the alleged crimes were committed on the territory of a State Party, but after that, any State Party could have made the referral.

But the main point I want to focus on is whether this is really a referral of a “situation” as required by the ICC Statute. Both Dapo and Kevin make strong cases on the fact that this is indeed a “situation”, because specific cases have not been referred (which would not be allowed) and because it is not an issue that potentially only one crime has been committed (I’m not entirely sure why both of them make this last point so vocally, as even the referral suggests, even unconvincingly a number of alleged crimes falling within the jurisdiction of the Court…). I’m still not convinced for the following reasons.

To start out, it is interesting to note that, reading the referral, the scope of the “situation” that is referred is subject to interpretation. The Mavi Marmara is mentioned a number of times in the document, but the actual referral seems to be broader and cover “IDF’s attach on the humanitarian aid flotilla on the 31st of May 2010”. This ambiguity is reflected in the OTP Press release with only mentions the Mavi Marmara in the title of the release, while using the broader scope in the text of the release.

I think both interpretations raise different questions that I’m struggling with.

If the situation referred is the attack on the Mavi Marmara, I can’t shrug the feeling that this is stretching the notion of “situation” a little too far. Of course, a “situation” needn’t be the whole territory of a State (as illustrated by the Uganda and Sudan referrals). However, I’m wondering if narrowing down a referral to a single event doesn’t make a joke out of the whole idea of what a “situation” is (as well as of prosecutorial discretion in the selection of cases). Would we really call, for example, the “referral” of the destruction of the bridge of Mostar or the Sarajevo snipping, “situations”? Or to take an ICC example, what would we have said if only the attack on the AU peacekeepers, for which Abu Garda was charged, had been referred by the Security Council?

Moreover, the thin line between “situation” and “case” becomes a little blurred if this referral is accepted. Indeed, at the ICC, a case is when, within a situation, a specific individual becomes the focus of investigations for specific crimes.  For me, allowing only one incident to be referred under the label “situation”, would be like saying in a national context that investigation into a murder is a “situation”… until a suspect is identified and it becomes a “case”. This would be a ridiculous semantic distinction. In other words, I think that we are here very close to a “case” being referred to the ICC. This feeling is obviously strenghtened by the fact that the perpetrators are already know and pointed to in the referral, at least collectively, as the IDF.

Let me be clear, I’m not saying that this referral does not fit the ICC definition as it currently stands and as put forward by Dapo and Kevin (given that it is extremely vague both in the Statute and the case law…), but should this be considered as a “situation”, thus allowing the ICC to take on specific incidents, rather than broader “situations” (for lack of a better word…),  I think this could change the logic of ICC intervention in ways that would not be necessarily welcome.

If, on the other hand, the “situation” is the attack on all the boats, notably the two other ships flying flags of State Parties (Greece and Cambodia), then a different question arises. The issue can become whether the referral is too broad rather than too narrow. Indeed, the referral covers crimes committed not on the territory of one State Party, but on the territory of several State Parties. Again, nothing in the Statute seems to prevent that, but I’m wondering if this is really what the drafters intended, because it could lead to the consequence of actually de-territorializing.

Indeed, what the Comoros are essentially saying, is that the key element is the attack and its perpretrators, irrespective of the territory it was committed on (aside from the jurisdictional requirements of course). This means that tomorrow, a State could refer the crimes committed by a global terrorist organization, anywhere on the territory of a State Party. Would that fit our instinctive notion of a “situation”? If it doesn’t, we must be cautious at accepting a referral which does the same here: the attack of the IDF on the flotilla, irrespective of the territory it was committed on. I know it seems difficult to compare the two situations, because we are just talking about boats here, not entire countries, but legally, it’s the same difference.

All in all, I think that the fact that this is a “situation” under the Rome Statute is not as clear-cut as we would like to think. And if it turns out to be, I think it sets a precedent that can have far-reaching consequences that we should be aware of and that might affect the way the ICC operates in ways that go further than the specific political context in which this referral comes.

The Lubanga Sentence (Part 2): Why the Ocampo Bashing is getting old

There is no doubt that Luis Moreno Ocampo, the recently departed ICC Prosecutor, was to ICL commentators what George Dubya Bush was to liberal americans, an endless provider of material to write about. I have myself blogged extensively on his gaffes, legal blunders and media outings over the years. Ocampo has also received a number of significant rebukes from ICC Judges in a number of decisions, not least in the Lubanga case and, with the Sentencing Decision that was handed down today, The Trial Chamber made sure not to miss this new, and probably last, opportunity to pile things on him again. But I’m wondering if the Ocampo bashing is not getting a little old. I don’t think he can be blamed for everything that went wrong in the Lubanga trial, and it should not mask the fact that the Judges did not take the appropriate measures to ensure that he stayed in line. This is true for both aspects of the Chamber’s consideration of prosecutorial conduct.

  • The question of sexual violence

First of all, in relation to Ocampo’s stance on Sexual Violence, the Chamber has the following to say (§60):

The Chamber strongly deprecates the attitude of the former Prosecutor in relation to the issue of sexual violence. He advanced extensive submissions as regards sexual violence in his opening and closing submissions at trial, and in his arguments on sentence he contended that sexual violence is an aggravating factor that should be reflected by the Chamber. However, not only did the former Prosecutor fail to apply to include sexual violence or sexual slavery at any stage during these proceedings, including in the original charges, but he actively opposed taking this step during the trial when he submitted that it would cause unfairness to the accused if he was convicted on this basis. Notwithstanding this stance on his part throughout these proceedings, he suggested that sexual violence ought to be considered for the purposes of sentencing.

There is no doubt that Ocampo deserved some criticism for his charging strategy in the Lubanga case. As Kevin John Heller points out over at Opinio Juris, you have to wonder if he does not now regret some of the choices he made, and, as I have said in the past, it can be argued that he shot himself in the foot by putting sexual violence forward systematically while refusing to charge the crime.

However, the bottom line is that this is part of prosecutorial discretion under the legal framework of the ICC. Whatever one thinks of the policy, it was perfectly within Ocampo’s powers to limit the charges in this way. He did not “fail to apply to include sexual violence”. He exercised his legally granted discretion not to include these charges, and the judges should stop harking on about it, which is, beyond their own discretion. I find this “it’s not our fault, it’s his fault” discourse equally unprofessional.

Moreover, the requalification of charges mess that delayed the trial even longer was certainly not Ocampo’s fault. It was due to the Chamber’s (with Fulford dissenting) totally inappropriate use of Regulation 55 (which is, as I’ve argued elsewhere an ultra vires extension of the Chamber’s power to start with) and Ocampo was perfectly right to oppose it.

Finally, given the Chamber’s acknowledgement that sexual violence could indeed be considered for sentencing, the Judges apparently agreed with Ocampo on this issue, so their rebuke was not really called for.

Bottom line, the Judges are unhappy that Ocampo did not charge sexual violence and want to make clear that it’s not their fault. That is not their role and is not professional conduct.

  • The delays during the trial
Second of all, the Chamber recalls the several instances of prosecutorial misconduct, and recognises the fact that Lubanga was “respectful and cooperative throughout the proceedings, notwithstanding some particularly onerous circumstances” (§91). The Judges recall three particular instances: the non-disclosure of exculpatory material, the non-compliance with Chamber orders for disclosure of the names of intermediaries and a public interview made by Beatrice le Fraper who made “misleading and inaccurate statements to the press about the evidence in the case” (§91).
In relation to the last incident, I commented at the time, saying that, while maybe a little careless, the statements by le Fraper were wrongly considered to put the fairness of the trial at risk. In relation to the non-disclosure issues, I commented extensively (here and here) on the appalling conduct of the Prosecutor. But once that was said, what did the the Chamber do about it? The Appeals Chamber at the time explicitly told the Trial Chamber to initiate proceedings for misconduct, which was never done. They might even have initiated more serious contempt proceedings, warranted by the gravity of what happened, or the ASP could have decided to remove the Prosecutor. At the time, however, the President of the ASP, in a meeting in The Hague candidly said that this would never happen
So basically, nobody did anything about Ocampo, except give him symbolic slaps on the wrist, as was done in the Lubanga Judgment. As I said back then, there comes a moment where this is not enough. There comes a moment where the judges should have taken their responsibilities and used their powers under the Statute to sanction Ocampo. One could even argue that the only adequate remedy for this systematic prosecutorial misconduct would have been a permanent stay of proceedings and the release of Lubanga. And arguably, the Trial Chamber did pronounce a stay of proceedings twice, overturned both times by the Appeals Chamber. But the Trial judges missed a last opportunity to draw the logical consequence of the poor and unfair conduct of the proceedings: the judgment itself. Instead, they just frowned at the prosecutor once again. 
And now they present themselves as the knights in shining armor, commending Lubanga for his conduct when faced with “unwarranted pressure by the conduct of the prosecution during the trial” (§97), and deciding to consider this as a mitigating circumstances. For me, at the end of the day, the judges are as responsible as Ocampo was for this trial being a joke at times, by failing to use their statutory powers to control him (and even, as recalled previously, by delaying the trial themselves). Apparently, command responsibility only applies to war criminals…
  • Final thoughts on Ocampo
I never thought I would one day write such a defense of Ocampo, having been a very vocal critic of his performance in past years. But there comes a moment when I get suspicious of systematic scapegoating. Ocampo was most certainly, all things considered, a poor choice as a Prosecutor. His communication skills are far from commendable, and more dramatically, his grasp of international criminal law was shaky at best. But, for better or for worse, he did put the ICC on the international map in a way that I’m not sure another Prosecutor would have done, and I did agree with some of his positions over the years (unsurprisingly, when he opposed an extensive participation of victims, for example). 
More importantly, and to come back to my Bush metaphor, I’m afraid that the poor performance of Ocampo is tainting our approach to Bensouda in the same way that Obama was seen as the savior of the nation. Everybody is head over heels for Bensouda and does not associate her with Ocampo. Even the Sentencing Judgment, when referring to the “former-prosecutor” plays a part in this narrative. But, as I’ve said before, Bensouda worked for Ocampo for 9 years, and can’t have not been involved in any of the bad decisions that he made. For example, I’ve seen some of the first documents coming out of the OTP in the Gbagbo case, and they certainly have not improved in terms of legal reasoning.
Of course, I wish Bensouda the best, but I do call for caution in having too high expectations, which is the surest way to have them dissapointed. All the talk about Africa and the ICC, geopolitcal considerations of selection of cases, extra-legal debates on Peace Vs Justice and the fact that we have both an African and a woman as Prosecutor as an offering to political correctness, should not mask the simple fact: what we need is a competent Prosecutor, nothing more, nothing less.

Sentencing Taylor, Suffering Victims and Collective Crimes: The Limits of International Criminal Law

Cross-posted on Opinio Juris

On the 30thof May, the SCSL sentenced Charles Taylor to 50 years in prison. The sentencing judgment raises a number of interesting issues. some commentators, such as William Schabas, or on Opinio Juris, Marina Aksenova, have discussed the length of the sentence, finding it either too long, or adequate, depending on the preferred objectives of criminal justice (rehabilitation, retribution, deterrence). Wherever one stands on this issue, I think that, despite it being common practice in a number of international judgments, handing down a single sentence for the entire array of crimes convicted, rather than having them individualized does not help achieve the goals one ascribes to sentencing. Indeed, how can there be deterrence, if there is no knowledge that a specific crime for which a person is convicted carries a specific sentence? There is also a problem of predictability, because we don’t know what the judges would have decided if Taylor had for a reason or another been acquitted on one of the counts. The only thing that can be taken out of the sentencing is that it is condemnable to generally participate in the events, and the fact that a couple of crimes more or less took place in the course of things becomes irrelevant.

Which brings me to the main point I want to address here: the limits of criminal law in addressing mass atrocities, both because of the question of gravity and because of the collective dimension of the acts.

  • The question of gravity
I have often commented here on the difficult assessment of the criteria of gravity in the ICC framework. In a nutshell, given the fact that the ICC, and international tribunals in general, are competent to prosecute the gravest crimes of interest to the international community as a whole, how does one define an additional notion of gravity within this context? This is made even more complicated because most people refuse to open the Pandora’s Box of a hierarchy of crimes, which would be reflected in sentencing. But if all international crimes are equally grave, then how do you justify given a higher sentence for one of them rather than the other? It essentially boils down the moral outrage of the individual judges. The Taylor sentencing judgment illustrates this point.

Indeed, the Judges start their assessment by claiming that “the Accused has been found responsible for aiding and abetting as well as planning some of the most heinous and brutal crimes recorded in human history” (§70). They then go on to describe the suffering of the victims, both physically and psychologically, stating that “their suffering will be life-long” (§72) that the effects on “society as a whole” are “devastating” and that many Sierra Leoneans, victims of the crimes, were “no longer productive members of society” (§74).

This is all very true, but, not too sound cold-hearted, should these elements be factors in sentencing? Again, the whole rationalebehind the creation of international tribunals is to address crimes which have these consequences. International crimes usually target vulnerable populations, are generally widespread and affect a society as a whole. But once these tribunals exist and function, the gravity of the crimes that justified their creation should, to a large extent, take a backseat in the daily work of the institution and the fact that “the Trial Chamber witnessed many survivors weeping as they testified, a decade after the end of the conflict” (§71) is, to put it bluntly, irrelevant. Of course, international tribunals operate as an element of post-conflict social reconstruction, but it does not mean that this transforms international judges in assessors of whether the crimes are the most heinous in human history or on the long-term effects on society as a whole. All international crimes are heinous and leave a mark on human history. All international crimes cause great suffering to their victims. That this suffering has been increasingly acknowledged is certainly a good thing, but I think that international criminal justice, as it gains in maturity, now needs less hyberbolic victim-oriented rhetoric, not more.

  • The relationship between individual responsibility and State responsibility
Beyond that, one sees here the difficulty of applying a traditional criminal law approach, with individual responsibility, to situations which are essentially collective, both in their consequences and their perpetration.

In relation to that, I was puzzled by one paragraph of the sentencing judgment relating to the extraterritoriality of the crimes, which the Trial Chamber apparently took into account as an aggravating factor (§27). What is striking is that the Chamber did not approach this from a factual point of view, i.e Charles Taylor being in Liberia took part in crimes being committed in Sierra Leone, a neighboring State. The Trial Chamber chose to approach this from an international law perspective, linking this with the principle of non-intervention, which, it recalls, is a customary law rule established by the ICJ in the Nicaragua case. The Judges consider that “while these provisions of customary law govern conduct between States, the Trial Chamber considers that the violation of this principle by a Head of State individually engaging in criminal conduct can be taken into account as an aggravating factor” (§27).

This is the first time I see this in a judgment of an international criminal tribunal. The sentencing judgment does not reference any other case as support for its approach, and a quick search in the ICTY database has come up with nothing. Essentially, the SCSL has pronounced itself on the international responsibility of Liberia, acting through its head of State. While one can doubt the adequacy of including such a paragraph in the first place, it would have deserved a longer development than this ambiguous sentence on a principle that does not bind individuals, but the violation of which by the said individuals can be taken into account nonetheless, which is, as it stands, certainly a peculiar statement in terms of legal reasoning.

The paragraph does however have the benefit of raising the issue of the link between individual responsibility and the collective (State) dimension of international crimes. This is a regular feature of debates in international criminal law, whether in relation to the common plan or policy requirement for genocide, the State or organizational policy for crimes against humanity, or the explicit recognition in the definition of aggression that you need a State act before prosecuting an individual for the crime. While it is beyond the scope of this brief commentary to address this adequately, it begs the eternal question that should never be forgotten when discussing the philosophy of international criminal law: when does the organizational requirement for the commission of an international crime actually negate the relevancy of attributing individual criminal responsibility for that act?

Abu Garda: Justice follows its course

Given my recent travels, I didn’t have time to comment on the decision by the ICC Pre-Trial Chamber I not to confirm the charges against Abu Garda.

It’s a fairly momentous decision from a symbolic point of view. It crowns a series of debatable decisions on the part of the prosecutor in the most emphatic way. This prosecutor really seems to make everybody unhappy. In relation to my previous post on the ISA conference, it was funny to see that despite all the inter-disciplinary disagreements on matters relating to the International Criminal Court, everybody seems to agree to criticize Ocampo… Beyond that, I think it is in fact a good thing for the legitimacy of the Court that it accepts to not go to trial. I don’t recall this happening before in international justice. Arguably, the ICC did so on a fairly low profile case, where no media-friendly crime is involved, but still…

From a legal point of view, the decision is not that surprising when you read through it. The OTP really seems to have butchered the case. Apparently, the Prosecution cannot persuasively show that Abu Garda participated in any of the meetings where the attack was planned, nor can it establish that he actually physically took part in the attack. Apparently, the OTP documents claim that he was there and not there… So given this lack of evidence, at least that’s how the PTC presents it, it only seems normal that the confirmation of charges was denied.

This being said, I had a couple of extra comments. The first one relates to the nature of the confirmation of charges decision. The Chamber reminds us “that the confirmation hearing is neither a trial before the trial nor a mini-trial”. But it is difficult to see how it is not. PTC I seems to engage in the sort of activity that is typical of a trial phase. More particularly, it systematically does an assessment of the credibility of witnesses in comparison with other witnesses. It also engages into a very precise legal analysis of the definition of the crime and its application to the specific AMIS mission, which turns out to be useless at the end given that they can’t link Abu Garda to the events anyway (Judge Tarfusser gave a separate opinion on this point). As I’ve already said elsewhere, the multiplication of procedural steps at the ICC and the correlative multiplication of burdens of proofs makes the whole process a little confusing in my opinion, and the only benefit initially proposed for this, namely speeding things up, has noticeably failed until now. So I remain skeptical about the ICC pre-trial mechanisms.

The second point relates to gravity, something I’ve already mentioned on this blog before. Up to now, the case-law seemed to have developed in the direction of the judges choosing to ignore the issue of the article 17 “sufficient gravity” criteria. In this case, PTC I did decide to consider it. It acknowledges that

“the gravity threshold contemplated therein is in addition to the Statute drafters’ careful selection of the crimes included in articles 6 to 8 of the Statute. Hence, the fact that a case addresses one of the most serious crimes for the international community as a whole is not sufficient for it to be admissible before the Court”. 

That is a first good first step if the gravity threshold is going to make any sense at all. But afterwards the reasoning loses of its credibility. The Chamber considers the elements to be taken into account, and refers to the criteria to be looked at at sentencing as a guideline. That doesn’t really make sense because it suggests that the crimes that would be considered of sufficient gravity at the admissibility phase are the ones that would carry heavier sentences due to aggravating circumstances later on. But if only those cases are selected at the outset, the sentencing criteria become redundant when sentencing comes along.
On their factual analysis, the judges are even more unconvincing.

“The Chamber thus finds that the consequences of the attack were grave for the direct victims of the attack, that is, the AMIS personnel, and for their families. In addition; the alleged initial suspension and ultimate reduction of’AMIS activities in the area as a result of the attack had a grave impact on the local population”

“The consequences were grave for the direct victims”! How’s that for an analysis? Of course the consequences were “grave”, the victims died! But the Chamber can’t really be saying that this is the threshold of gravity to be met, it would just strip it of its content once again. The consequences are always grave for the direct victims of crimes, whether it is genocide, rape or carjacking… as for the second criteria, I’m not convinced about the causality link. The ultimate reduction of AMIS activities in the region is a shameful strategic decision in response to the attack. But what did they expect? It is a war zone and risk is part of the job description. The reason there is a need for peacekeepers in the first place is because it is a risk zone…
I think this decision was the perfect opportunity for the judges to take a stand on the gravity threshold and make a policy statement that the OTP is apparently incapable of making that this kind of war crime, committed in isolation, is not a priority for an international court with a global dimension and limited means. And the opportunity was missed.